Marine Monument Case Aligns Trump, Conservationists

A ballet of three North Atlantic right whale tails break the surface off Provincetown, Mass., in Cape Cod Bay on April 10, 2008. (AP Photo/Stephan Savoia, File)

WASHINGTON (CN) – Cautiously aligned with the government in support of America’s first marine monument, environmentalists urged a federal judge Monday to sink a challenge by fishing groups.

Designated by President Barack Obama in September 2016, the Northeast Canyons and Seamounts Marine National Monument encompasses 4,913 square miles off the coast of New England.

Cordoned off from oil and gas exploration, as well as commercial fishing, the seabed within the monuments boasts four underwater volcanoes and three canyons.

Obama’s proclamation creating the monument spoke to the scientific and ecological importance of this ecosystem, but a group of commercial fishers challenged the designation in March 2017.

In addition to challenging the government’s authority, the group said regulators could have accomplished the same goals with a smaller tract of ocean.

The Natural Resources Defense Council, the Center for Biological Diversity, the Conservation Law Foundation and naturalist Zack Klyver had all intervened in the case and submitted a brief Monday just over a week after the U.S. government moved to dismiss the suit.

While agreeing with the government about the legality of the monument, the environmental groups did push back against its claim that monument designations are unreviewable.

The April 30 response says D.C. Circuit precedent does empower judicial review of national monuments designations, but that the challengers must show the designation was deficient. Here there has been no such showing, the response continues.

The groups say that the president’s authority to designate national monuments extends to areas the government controls. Because the monument falls within the exclusive economic zone – a strip of ocean 12 to 200 nautical miles from shore – the government clearly controls the area and can do with it as it sees fit.

Based on Supreme Court precedent, this authority extends not just to the ocean’s floor, but all the way to the waves on the surface, the groups say.

“Indeed, the Supreme Court has recognized that some monument reservations would be meaningless and ineffective at protecting the identified objects if they did not also include the superjacent waters above submerged lands,” the 41-page response states.

The groups also attacked the claims by the fishing groups that the monument is too expansive, saying its goal is not just to protect the canyons and volcanoes included within its boundaries, but also the unique ecosystem that has developed around them.

“As the D.C. Circuit has made clear, the Antiquities Act does not require the president to recite the location of each object to be protected in the text of the proclamation,” the response states. “Reading such a requirement into the Antiquities Act would be grossly impracticable and unnecessary, stymieing presidential action in exactly those situations where monument protection can be most merited: where the deserving objects exist at a significant scale and complexity and where they have not yet been fully studied.”

Natural Resources Defense Council attorney Katherine Desormeau, who signed the brief, has not returned a request for comment.

The Department of Justice and the Massachusetts Lobstermen’s Association, the lead plaintiff in the case, also did not return requests for comment on the filing.